Kerala High Court

M/S.Zodiac Auto Finance vs State Of Kerala on 27 August, 2021

CRL.A NO. 1284 OF 2007                  1


              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
      FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943
                         CRL.A NO. 1284 OF 2007
    AGAINST THE JUDGMENT IN Crl.A NO. 160/2006 OF ADDITIONAL
                SESSIONS COURT (ADHOC)-II, ERNAKULAM,
APPELLANT/PETITIONER:

             M/S.ZODIAC AUTO FINANCE
             REP. BY ITS MANAGING PARTNER K.M. GEEVARGHESE,
             LISIE JUNCTION, KOCHI-18.

             BY ADV SRI.PEEYUS A.KOTTAM



RESPONDENTS/RESPONDENTS:

     1       STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

     2       O.J. MATHEW, S/O. JOSEPH,
             OORUMBIL HOUSE, MANIYARAMKUDY P.O.,
             VAZHATHOPPU, IDUKKI.

             BY SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWICK




      THIS   CRIMINAL    APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
27.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 1284 OF 2007                     2




                                JUDGMENT

This appeal has been filed challenging the judgment dated

16.12.2006 in Crl.A No.160/2006 on the file of the Additional

Sessions Judge (Adhoc II), Ernakulam, through which the conviction

and sentence imposed on the 2nd respondent/accused in a

prosecution under Section 138 of the Negotiable Instruments Act by

the Judicial First Class Magistrate Court II, Ernakulam was reversed.

2. The appellant herein was the complainant in

C.C.No.1107/1999. According to the appellant/complainant, the 2 nd

respondent/accused herein had availed a hire purchase loan from the

appellant/complainant and that he had committed default in

repayment of instalments due under the hire purchase agreement.

According to the appellant/complainant, the 2 nd respondent/accused

had repaid only one instalment of the loan and on 20.11.1998 he had

issued Ext.P2 cheque for a sum of Rs.1,21,000/- which was the total

amount to be repaid under the hire purchase agreement. The trial

court after considering the evidence let in come to the conclusion

that the 2nd respondent/accused herein had committed the offence

punishable under Section 138 of the Negotiable Instruments Act and

had accordingly convicted and sentenced the accused.

3. Inter alia, the circumstances which weighed with the trial

court to reach its conclusion were the following:

i) The execution of the hire purchase agreement

(Ext.P8) has not been denied by the 2 nd

respondent/accused.

ii) The fact that only one instalment had been

repaid by the 2nd respondent/accused, is also not denied.

4. Though the accused had filed an application for sending

Ext.P2 cheque to the forensic expert for verifying the signature and

handwriting and though that application was allowed by the court,

the forensic laboratory had returned the same without comparison

and demanding more documents written by the 2 nd respondent/

accused during the same period in order to complete the

investigation. However, the 2nd respondent/accused did not produce

any further document, as a result of which Ext.P2 cheque was not

subjected to any forensic examination. Though there was some

difference in the signature shown in Ext.D1 (account opening form)

and the signature of the 2nd respondent/accused in Ext.P2 cheque

and though the signature in documents relating to the registration

particulars of the vehicle (marked as Ext.X1), is not identical to the

one contained in Ext.P2 cheque, the trial court found similarity in

the signatures contained in the said public documents, in Ext.P8 hire

purchase agreement and in Ext.P2 cheque. The trial court found

that there is patent difference in the signatures contained in Ext.P2,

Ext.D1 account opening form and Ext.P6 acknowledgment card

relating to the statutory notice issued by the appellant/complainant.

The trial court also found that the 2 nd respondent/ accused had no

case that the appellant/complainant had obtained the cheque from

him by unlawful means and had fabricated his signature and

handwritting and that no reply was sent by the 2 nd

respondent/accused to the statutory notice issued by the

appellant/complainant.

5. The trial court, therefore, was of the view that the

appellant/complainant was entitled to the benefit of the statutory

presumption under Section 139 of the Negotiable Instruments Act

and therefore found that Ext.P2 cheque had been issued for

discharge of a legally enforceable debt and answered that issue in

favour of the appellant/complainant.

6. The trial court thereafter, considering the fact that the

cheque in question had been returned unpaid for the reason of

insufficiency of funds and also that a statutory notice as

contemplated by the provisions of the Negotiable Instruments Act

had also been issued in the matter held that the accused is guilty of

the offence punishable under Section 138 of the Negotiable

Instruments Act and sentenced the 2 nd respondent/accused to

undergo simple imprisonment for a period of six months for the

offence punishable under Section 138 of the Negotiable Instruments

Act and also directed payment of compensation of Rs.2,00,000/-

stated to be the principle amount together with 6% interest per

annum to the complainant under Section 357(3) of the Code of

Criminal Procedure and in default to undergo simple imprisonment

for a further period of six months.

7. The 2nd respondent/accused filed Crl.A No.160/2006,

challenging the conviction and sentence imposed in

C.C.No.1107/1999. That appeal was allowed by judgment dated

16.12.2006. A reading of the appellate court judgment shows that

the appellate court was of the opinion that the signature on the

cheque had not been proved to be that of the 2 nd respondent/accused

herein. In particular, the appellate court noticed that the signatures

on Ext.D1, the account opening form and Ext.X1 containing the

registration particulars of the vehicle were different from the

signature contained in Ext.P2 cheque. By invoking the power under

Section 73 of the Evidence Act, the court reached the conclusion

that on a comparison of the signatures in Ext.P2 cheque, Ext.P8 hire

purchase agreement, Ext.X1(a) extract of the registration

particulars of the vehicle purchased with the hire purchase loan, the

signatures on the postal acknowledgment card (Ext.P6), Ext.D1

account opening form, vakalath of the 2 nd respondent/accused and in

the statement recorded by the trial court under Section 313 Cr.P.C,

the name of the 2nd respondent/accused is decipherable from the

signatures in Exts.P2, P8 and X1(a), whereas in other documents,

the signature is only a cluster of bent lines scribbled with English

alphabets 'O.J' beneath it. On that assumption, the appellate court

proceeded to find that the signature on Ext.P2 cheque has not been

established by the appellant/complainant.

8. This is a case where the 2nd respondent/accused has not

denied the fact that he had entered into a hire purchase agreement

with the appellant/complainant. He had also not denied the fact that

he had failed to repay the instalments of the loan in time. I must

also take note of the fact that though the 2 nd respondent/accused

had initially filed an application for sending the cheque in question

for forensic examination, for the reasons already indicated, such

forensic examination was not completed solely on account of the

default on the part of the 2nd respondent/accused. The trial court on

an examination of the signatures on various documents concluded

that there was a similarity in the admitted signature and the

signature contained in the cheque. Of course, the appellate court

has by invoking Section 73 of the Evidence Act come to a different

conclusion regarding the similarity in the signatures. But pertinently

even in the judgment of the appellate court, it has been clearly

found that the signatures on Ext.P2 cheque is similar to the

signatures contained in Ext.P8 hire purchase agreement and in

Ext.X1(a), extract of the 'B' register maintained by the Regional

Transport Officer, containing the registration particulars of the

vehicle purchased, using the hire purchase loan. When the

appellate court had found that the signature in the cheque is similar

to the one in Ext.X1(a), there was no reason to disbelieve the version

of the appellant/complainant that the cheque had been issued in

discharge of a legally enforceable debt especially when taking of the

loan and the failure to repay had not been disputed. In Abbas Haji

M. v. T.N.Channakeshava (2019(5) KHC 20), it was held:-

"4. The case set up by the complainant was that the original appellant had borrowed a sum of Rs.5 lakhs

from him and for repayment of that sum had issued a cheque on 18/11/2000 drawn on State Bank of Mysore. On presentation, the cheque was dishonoured for want of sufficient funds. Thereafter, legal notice (Ext.P4) was issued, which has been duly served upon the original appellant. According to the complainant, no reply to the said notice was received and therefore a private complaint was filed. A defence was raised by the accused that he had not signed the cheque. During the course of the trial, the original appellant got the cheque sent to the handwriting expert for comparison with the admitted signatures. It is not clear as to what were the admitted signatures which were sent to the handwriting expert but the handwriting expert opined that the signatures on the cheque were not those of the person who had written the admitted signatures. The Trial Court dismissed the complaint mainly on the ground that the handwriting expert had opined that the signatures on the cheque were not those of the original appellant.

5. The complainant filed an appeal to the High Court, which after considering the entire evidence, has delivered a well reasoned judgment upsetting the judgment of the Trial Court. The reasons which weighed with the High Court were that; (1) the original appellant did not step into the witness box to state that he had not signed the cheque; (2) that the opinion of the handwriting expert was only an opinion and not conclusive; (3) that the original appellant had failed to prove that he had sent a reply to the notice sent to him by the complainant because so - called reply was not marked in evidence and no postal receipt of the same was placed on record.

6. It is urged before us that the High Court over - stepped the limits which Appellate Court is bound by criminal cases setting aside an order of acquittal. Proceedings under S.138 of the Act are quasi - criminal proceedings. The principles, which apply to acquittal in other criminal cases, cannot apply to these cases. As far as the present case is concerned, in addition to three reasons, given by the High Court, we are of the view that the original appellant has not even explained how the leaves of the cheque entered into the hands of the complainant. It is urged that in cross -examination of the complainant some suggestions were made that since

the complainant was visiting the office of the original appellant, he had access to the same. The complainant had only admitted that he visited the office of the original appellant but he denied all the other suggestions. Thereafter, it was for the original appellant to prove his part of the case. The High Court, in our opinion, was right in holding the original appellant guilty under S.138 of the Act."

9. In the facts of the present case as already noticed, the

transaction between the appellant/complainant and the 2 nd

respondent/accused has not been disputed. The appellate court also

found that there was similarity in the signature on the cheque, the

hire purchase agreement and in the registration details maintained

with the Motor Vehicles Department. That finding by itself, is in my

opinion sufficient to establish that the statutory presumption under

the Negotiable Instruments Act was available to the

appellant/complainant. Therefore, the appellate court went wrong

in reversing the conviction and sentence imposed on the 2 nd

respondent/accused. In that view of the matter, this appeal is

allowed. The 2nd respondent/accused is found guilty of having